Wednesday, June 07, 2017

Kuwait is located on the
northeastern part of the Arabian Peninsula, known as Arabia, and on the
northwestern head of the Persian Gulf. The country is rich, and is estimated to
have the fifth largest petroleum reserves in the world. The country became
independent on June 19, 1961 and is ruled by the Sabah family, who has been
ruling this country for two hundred years.

On August 2, 1990, Iraq,
led by Saddam Hussein, invaded and annexed Kuwait. This led the United States,
under President George H. W. Bush, who created a coalition of other nations to
launch Operation Desert Storm to liberate Kuwait. The war lasted until February
28, 1991, and resulted in a convincing victory for the U.S and its coalition.

Kuwait is a
constitutional hereditary monarchy with its cabinet (Council of Ministers)
appointed by the Emir, and a National Assembly that is elected every five
years. The Parliament serves as a legislative body with the power to overturn
the decrees issued by the Emir, who is head of state. The constitution of
Kuwait was adopted in 1962, and the parliament is elected every four years.

Islam is Kuwait’s
religion. Roughly 70% of the state’s inhabitants are Sunni, while 30% are Shi’as.
More than fifty percent of the residents of Kuwait are foreigners, who are able
to establish their own schools and practice their religious faiths.

On May 16, 1999, the emir
of Kuwait, Shaikh Jabir al-Sabah, issued a decree to grant Kuwait women the
right to vote and to run for office “in recognition of their vital roles in
building Kuwaiti society and in return for the great sacrifices they had made
during various challenges the country faced.”

In 1994, Kuwait signed
the Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW). Upon ratification, it incorporated reservations on a number of
provisions, including one giving equal rights to men and women with respect to
guardianship and adoption of children, saying that they conflicted with Islamic
law. Kuwait’s personal status law, as we shall see below, is theoretically
based on Islamic Shari’a Law.

PERSONAL STATUS LAW OF KUWAIT (PSL)

Article 2 of the
Constitution of Kuwait states that the religion of the State is Islam, and that
the Islamic Shari’a shall be a main source of legislation. The personal status
law of Kuwait, number 51, 1984, is based on Islamic Shari’a, in accordance with
the Maliki school of jurisprudence. The PSL legitimizes male protection and
control over women. In Kuwait, a man may divorce his wife without her consent
and is only responsible for her maintenance during the three-month period of iddah.

Article 74 of this law
requires the husband to support his wife. In return for her right to nafaqa (maintenance), the wife must obey
her husband and rear the children. Article 88 of PSL, however, does not give
the husband an absolute right to ta’a
(obedience). If a wife feels that she can no longer live with her husband and
her his house, a judge cannot force her to obey her husband’s demand that she
returns. Under such circumstances, the wife will lose her right to maintenance
and the court will support that.

Article 102 of the PSL
stipulates that a husband may divorce his wife without her consent and is only responsible
for her maintenance during the three-month period of iddah during which a woman is secluded in order to determine
whether she is pregnant to ensure that the husband is the only father of the
child. The husband, however, is required to provide her with an allowance for
any children in her custody. In addition, under Article 165, if a woman is
divorced without her consent, her former husband is required to pay her
maintenance for one year as a compensation. This is known as nafaqat al-mut’ah.

CUSTODY OF THE CHILDREN (HADANAH)

The Personal Status of
Kuwait designates fathers as the legal guardians of their children. According
to Article 194, mothers may have physical custody of the children, and in the
event of divorce they retain custody of male children until maturity, which is
15 years of age, and female children until they marry, but the authority over
their children is significantly less than their ex-husband’s. However, the
mother loses custody if she remarries.

Religious doctrines and
local tradition requires that parental control over the children is left
unchallenged. This means that the government does not interfere in this
area.Rather, parental authority is
limitless, almost absolute. A husband may forbid his wife or daughter to work
outside the home. There are no constitutional guarantees for women to
employment.

Article 190 of the PSL
list the qualifications of the person who has custody of the children, they
include: maturity, reasonable, faithfulness, and ability to take care of the
child, and keep the child healthy and good manners. Additionally, Article 191
also requires that the mother who has custody of a female child, that she would
lose her custody right if she remarries a man being a relative of the child in
a prohibited degree. i.e., a relative who is prohibited from marrying the
female child, “if the marriage is consummated.” Article 191(b) also indicates
that if the next in line for custody keeps silent for a year, without good
excuse, after knowing of the consummation of a disqualifying marriage, then
they lose the right to claim that custody, adding that they cannot claim
ignorance of this provision as an excuse.

As to acquiring
citizenship in Kuwait, Art. 2 of the Kuwaiti Nationality Law states that “Any
person born in, or outside Kuwait, whose father is a Kuwaiti national shall be
a Kuwaiti national himself.” The nationality of the father is therefore, the
determining factor for granting a Kuwaiti citizenship to the children. In
addition, Article 8 of the Kuwaiti nationality law allows the foreign wife of a
Kuwaiti citizen to acquire the Kuwaiti nationality after completing 15 year of
marriage.

DISCLAIMER:While every effort
has been made to ensure the accuracy of this publication, it is not intended to
provide legal advice as individual situations will differ and should be
discussed with an expert and/or lawyer. For specific or legal advice on the
information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East background,
and a recognized authority on Islamic law of marriage, divorce and custody of
children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

·Professor of Middle
East Constitutional and Islamic law,

·Expert Consultant on
Islamic divorce in US Courts and Canada,

·Expert Consultant on
Hindu divorce in U.S. courts,

·Expert Consultant on
Iranian Shi’a divorce in USA,

·Expert Consultant on
Islamic finance.

Admitted to the
Lebanese Bar Association; Associate Member of the New York State Bar
Association and the American Bar Association.

Prof. Sawma lectured
at the American Academy of Matrimonial Lawyers (AAML) in New York State and
wrote many affidavits to immigration authorities, Federal Courts, and family
State Courts in connection with recognition of Islamic foreign divorces in the
U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance
for MBA program at the University of Liverpool, United Kingdom.

Wednesday, November 02, 2016

In 2012, I was asked to write an opinion to the
Supreme Court of Westchester County in New York on behalf of S.B. who obtained
a divorce decree from Abu Dhabi, UAE. The divorce decree granted the wife
custody of the children and ordered the husband to pay his wife, a mahr of
$250,000.00, and legal fees.

The New York’s Supreme Court of Westchester County
took a judicial notice of the constitution and laws of the United Arab Emirates
(UAE) for purposes of determining whether entry of judgment of divorce and
order of child custody entered in Abu Dhabi would be recognized and registered
in the state of New York. (See procedural and background of the case S.B. v.
W.A. at: http://caselaw.findlaw.com/ny-supreme-court/1616620.html

Background

Both S.B. and W.A. were married on May, 1998 in a
civil ceremony in the City, County, and State of New York. Following that, the
parties married in an Islamic ceremony in compliance with Islamic law, also in
the State of New York. They both signed a marriage contract, in which the
husband promised to pay his future wife an advance mahr of $5,000.00 and, in
the event of divorce, or death of the husband, a deferred mahr of $250,000.00.
Two children were born of the marriage, a girl, born on July 12, 2001, and a
boy, born on August 3, 2004. Both children were born in the United States.

In 2006, the defendant (husband) received an
employment in the emirate of Abu Dhabi (UAE), and decided to move there. The
plaintiff (wife) and children remained in the U.S. until August 2007, when they
joined the plaintiff in Abu Dhabi.

Domestic Violence in Abu Dhabi

While in Abu Dhabi, the plaintiff initiated criminal
proceedings against the defendant following an incident of domestic violence
that occurred on January 28, 2009. After that, the marital relation soured and
the wife obtained a divorce judgment from the Court of First Instance in Abu
Dhabi, along with an order awarding her custody of the children and other
financial relief. The divorce and custody order was affirmed on appeal to the
Court of Appeal and to the Court of Cassation, which is the highest court in
Abu Dhabi.

The Plaintiff Seeks Recognition of the Divorce
Judgment Obtained from Abu Dhabi

In support of her motion, plaintiff submitted
certified copies of the Abu Dhabi orders, judgments, and decrees, which were
translated from Arabic to English by a legal translator duly licensed by the
Ministry of Justice in the UAE, who attested to the correctness of the
translation.

She also submitted an affidavit from this author, as
expert consultant on Islamic divorce in the United States and Middle East laws,
including the legal structure of the courts of the UAE.

In my affidavit, I explained the structure of the
judiciary in the UAE, the legal proceedings between the parties, and the
judgments and decrees rendered by the Abu Dhabi courts.

Plaintiff also submitted an affidavit from an attorney
admitted to practice law in Abu Dhabi, who represented the plaintiff in
connection with post-matrimonial issues. In his affidavit, he explains the
legal proceedings in Abu Dhabi.

Divorce Proceedings in Abu Dhabi

On July 1, 2009, the plaintiff filed a petition for
divorce in the Court of First Instance under Article 117 of the Personal Status
Law of the UAE. Hearings on the divorce were held on October 13, November 8,
and December 14, 2009. Both parties participated in the proceedings, and both
were represented by counsel.

On December 27, 2009, in the presence of both parties,
the Court of First Instance issued a judgment on the merits, granting the
plaintiff a divorce from the defendant; directing the defendant to pay the
plaintiff the deferred mahr of $250,000.00; directing the defendant to pay
alimony for the children, including food, clothing and transportation
allowances; directing the defendant to pay monthly alimony to the plaintiff.
The Abu Dhabi Court also awarded the plaintiff custody of the children, and
directed the defendant to pay all relevant fees and expenses.

The decision of the Court of First Instance was
appealed to the Court of Appeal, which rendered a decision on April 4, 2010,
and the Court of Cassation, which rendered decision on November 8, 2010. Both
courts affirmed the judgment with minor modification related to the iddah
Alimony.

Jurisdiction of the Abu Dhabi Courts

The defendant claimed that the parties are deemed
married under the laws of New York, as the Abu Dhabi courts entered a divorce
judgment based on the religious marriage, applying the laws of the Islamic
Sharia, and no divorce action has been filed based upon the civil marriage. He
claimed that the Abu Dhabi divorce was a religious judgment of divorce, not a
civil judgment of divorce, and therefore, the New York courts should not afford
it comity.

The question before the New York’s Westchester Supreme
Court (Judge Francesca E. Connolly) was whether the Court of Abu Dhabi had
jurisdiction over the case. The Supreme Court held that:

“Both parties were
residing in Abu Dhabi when the plaintiff instituted the divorce proceedings.
The divorce decree was obtained after a trial and tow appeals, including an
appeal to the highest court in Abu Dhabi, the Court of Cassation, that rendered
a final and binding judgment of divorce. Both parties were represented by
counsel, participated in the divorce proceedings and had a full opportunity to
contest jurisdiction and all other issues. There is no question that the
foreign court had jurisdiction over the parties at the time the divorce
judgment was issued and that it was a final binding order, thereby precluding
the defendant from now collaterally attacking its validity or relitigating any
of its provisions (See Borenstein v. Borenstein, 151 Misc. 160, 270 N.Y.S. 688
[Sup. Vt. N.Y. Co, 1934]; Greschler v. Greschler, 51 N.Y.2d at 376, 434
N.Y.S.2d 194, 414 N.E.2d 694).

“A court has the inherent
power pursuant to the principles of comity to recognize and enforce a foreign
judgment of divorce “unless there is some defect of jurisdiction shown to be
against the public policy of the domestic state” (48A N.Y. Jur. 2d, Domestic
Relations at 2809). “[A] party who has properly appeared in a foreign action is
ordinarily precluded from attacking the resulting judgment by bringing a
collateral New York proceeding …. Only where there has been a showing that the
foreign judgment was fraudulently obtained … or that recognition of the
judgment would conflict seriously with a compelling public policy … cab a
collateral attack be entertained” (Robinson
v. Robinson, 120 A.D.2d 45, 415-16, 501 N.Y.S.2d 874 [1st Dept,
1986]). “Absent some showing of fraud in the procurement of the foreign country
judgment … or that recognition of the judgment would do violence to some strong
public policy of this State … a party who properly appeared in the action is
precluded from attacking the validity of the foreign country judgment in a
collateral proceeding brought in the courts of this State) (Greschler v. Greshcler, 51 N.Y.2d at
376, 434 N.Y.S.2d 694).

The New York’s Supreme Court of Westchester County
recognized the Divorce Judgment

The Court in New York recognized the divorce judgment
obtained from Abu Dhabi pursuant to the doctrine of comity:

“The general principle of
law is that a divorce decree obtained in a foreign jurisdiction by residents of
this State, in accordance with the laws thereof, is entitled to recognition
under the principle of comity unless the decree offends the public policy of
the State of New York” (kraham v. Kraha, 73 Misc.2d 977, 342 N.Y.S.2d 943 [Sup.
Ct. Nassau Co. 1973]). “Although not required to do so, the courts of this
State generally will accord recognition to the judgments rendered in a foreign
country under the doctrine of comity which is the equivalent of ful faith and
credit given by the courts to judgments of our sister States” (Greschler v.
Greschler, 54 N.Y.2d 368, 376, 434 N.Y.S2d 194, 414 NE.2d 694 [1980]).
“Loosley, [comity] means courtesy, respect, or mutual accommodation;
practically, it means that each sovereign, including the State of New York, can
decide for itself which foreign country judgments it will recognize and which
it won’t” (Siegel, N.Y. Prac. 472 [5th edi.])

New York’s Supreme Court of Westchester County
Recognized the Custody Order of Abu Dhabi

The Supreme Court of Westchester County recognized,
not only the Abu Dhabi divorce judgment, the Court also recognized all the
contents of such a decree, including the custody of the children. The Supreme
Court held:

“Since New York
recognizes bilateral divorce decrees from foreign countries, recognition will
be given to all the contents of such a decree, including a separation agreement
incorporate and approved therein…”

The Court held that:

“The Uniform Child
Custody Jurisdiction Enforcement Act (UCCJEA) applies nationally and
internationally and is designed to promote uniformity throughout the world in
custody determinations (See Sobie, Practice Commentaries, [McKinney’s Cons. Laws
of N.Y., Book 14]). The UCCJEA is mandatory and provides that “a child custody
determination made in a foreign country under factual circumstances in
substantial conformity with the jurisdictional standards of this article must
be recognized and enforced,” except where “the child custody law of a foreign
country as written or as applied violates fundamental principles of human
rights” (Domestic Relations Law 75-d[2] and [3]).

The Court held that the UCCJEA “is not a reciprocal
act”. There is no requirement that “the foreign country enact a UCCJEA
equivalent” (See Sobie, Practice Commentaries [McKinney’s Const. Laws of N.Y.,
Book 14].) The statute “is designed to eliminate jurisdictional competition
between courts in matters of child custody, with jurisdictional priority
conferred to a child’s home state.” (Hector G. v. Josefina P., 2 Misc. 3d 801,
809, 771 N.Y.S.2d 316 [Sup. Ct. Bronx Co. 2003]).

The Court held that:

“The decision from the
Court of First Instance noted that the mother usually has the right to custody
of the children unless proven otherwise. The defendant made no showing to
refute the custody award to the plaintiff. This award of custody to the
plaintiff was affirmed following two appeals, including an appeal to the
highest court in Abu Dhabi. The defendant thereafter petitioned the Abu Dhabi
court to change custody from the plaintiff to the defendant based upon the fact
that he had moved to the United States. Defendant’s application was denied by
the Court of First Instance and affirmed on appeal.”

The Court concluded that neither party alleged that
any of the child custody laws of the UAE violate fundamental principles of
human right or that the Abu Dhabi courts were without jurisdiction to determine
custody. “Nor does the New York’s Supreme Court of Westchester County found any
such violation or lack of jurisdiction:

“Therefore, based upon
the principles of comity and pursuant to Domestic Relations Law 75-d, this
Court must recognize and enforce the custody determination of the Abu Dhabi courts
awarding plaintiff custody.”

The Appellate Division Affirms

On January 20, 2016, the Appellate Division affirmed
the judgment of the lower Court. It held:

“"Although not required to
do so, the courts of this State generally will accord recognition to the
judgments rendered in a foreign country under the doctrine of comity which is
the equivalent of full faith and credit given by the courts to judgments of our
sister States" (Greschler v Greschler, 51 NY2d 368, 376; see Kuznetsov v
Kuznetsova, 127 AD3d 1031). Comity should be [*2]extended to uphold the
validity of a foreign divorce decree absent a showing of fraud in its
procurement or that recognition of the judgment would do violence to a strong
public policy of New York (see Matter of Gotlib v Ratsutsky, 83 NY2d 696,
699-700; Greschler v Greschler, 51 NY2d at 376; Farag v Farag, 4 AD3d 502, 504;
Azim v Saidazimova, 280 AD2d 566, 567). Moreover, in extending comity to uphold
the validity of a foreign divorce decree, New York courts will generally
recognize all the provisions of such decrees, including any agreement which may
have been incorporated therein, unless modification is required by reason of
some compelling public policy (see Greschler v Greschler, 51 NY2d at 376-377;
Rabbani v Rabbani, 178 AD2d 637, 638).”

DISCLAIMER:While every effort
has been made to ensure the accuracy of this publication, it is not intended to
provide legal advice as individual situations will differ and should be
discussed with an expert and/or lawyer. For specific or legal advice on the
information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East background,
and a recognized authority on Islamic law of marriage, divorce and custody of
children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

·Professor of Middle
East Constitutional and Islamic law,

·Expert Consultant on
Islamic divorce in US Courts and Canada,

·Expert Consultant on
Hindu divorce in U.S. courts,

·Expert Consultant on
Iranian Shi’a divorce in USA,

·Expert Consultant on
Islamic finance.

Admitted to the
Lebanese Bar Association; Associate Member of the New York State Bar
Association and the American Bar Association.

Prof. Sawma lectured
at the American Academy of Matrimonial Lawyers (AAML) in New York State and
wrote many affidavits to immigration authorities, Federal Courts, and family
State Courts in connection with recognition of Islamic foreign divorces in the
U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance
for MBA program at the University of Liverpool, United Kingdom.

Wednesday, June 15, 2016

Treatment of Gays Under Islamic Shari’a

By

Prof. Gabriel Sawma

As we mourn the death of 49 American citizens who were
massacred in Orlando by an Islamic extremist terrorist, Omar Mateen, the
question that is being raised is whether Islamic sharia calls for the death
penalty for gays and lesbians. This article covers the penalties as stated by
Islamic law and by modern Islamic states in the Middle East and North African
nations.

The
Qur’anic Verses

There are four verses in the Quran that are borrowed from the
Old Testament in relation to Lot, they are:

“And [remember] Lut[1]
(Lot), when he said to his people: “Do you commit the worst sin such as none
preceding you has committed in the Alamin
[mankind]”.[2]
(Quran 7 80)

“Verily, you practice your lusts on
men instead of women. Nay, but you are a people transgressing beyond bounds
[committing great sins]”.[3]
(Quran 7: 81)

“Verily, we are about to bring down
on the people of this town a great torment from the sky, because they have been
rebellious [against Allah’s command].”[4]
(Quran 29: 34)

“And we rained down on them a reain
[0f stones]. Then see that was the end of the Murimun [criminals, polytheists
and sinners.”[5]
(Quran 7: 84)

The Hadith

Hadith is the collection of saying ad deeds that are
attributed to Muhammad, the prophet of Islam, written more than two hundred
years after his death (d. 632 AD). There are six collections of Hadith in Sunni
Islam, they are: (1) al-Bukhari (d. 870 AD), (2) Muslim b. al-Hajjaj (d. 875
AD), (3) Abu Dawood (d. 888 AD), (4) al-Tarmidhi (d. 915), (5) al-Nissa’I (d.
915 AD), and (6) Ibn Maja (d. 886).

The Qur’anic verses mentioned above, represent a general idea
about the sexual acts of Lot with his daughters as stated in the Old Testament.
The Quran does not give a specific penalty for homosexuals. It was up to the
writers of the Hadith to impose penalties on gays and lesbians based on what
the Prophet of Islam said.

One saying attributed to the Prophet of Islam reads: “if a
man is having sexual relation with another man, both are considered
adulterers.” The companions of the Prophet of Islam claimed that the people who
imitated Lot should get the death penalty. They reasoned that after the
prophet’s saying that “if you find a person who does like what Lot did, kill
both of them.”

The companions of the Prophet did not agree on the method of
execution. The second Caliph and some of his companions suggested stoning of
the adulterers as one method; others called for death by burning.[6]

Penalty of
Gays and Lesbians in Modern Islamic Nations

Section 489 of the Penal Code of Morocco imposes a penalty of
six months up to three years in jail and monetary compensation of 120 to 1000
Dirham. Tunis: Section 230 of the Penal Code of Tunis imposes a jail penalty of
three years. In Algeria, Article 338 imposes a jail penalty from two months up
to two years with monetary compensation of 500 to 2000 Dinars.

In Sudan the penalty of flogging is handed down. Article 148
of the penal code states that a gay will get up to 100 lashes and imprisonment
of up to five years. In Libya the penalty is up to five years in jail. In
Mauritania, article 308 of the penal code imposes the penalty of stoning. In
Lebanon, the penalty is up to one year in jail. Article 520 of the Syrian code
imposes a penalty of up to three years in jail.

Saudi Arabia applies the strict Islamic interpretation
according to the Hadith, which is stoning for a married gay, or 100 lashes and
imprisonment for one year to non-married. The same penalties are applied in
Yemen.

According to article 354 of the Federal Emirati Law of the
UAE, the penalty for committing adulterous gay act against a minor under the
age of 14, is death by execution. However, each emirate in the UAE has the
right to impose its own penalties in these cases. For example, in Abu Dhabi,
the penalty for gay act is 14 years in jail. In Dubai, the penalty is 10 years
according to article 177 of the penal code.

In Kuwait, the penalty is 7 years in prison according to
article 193. Article 281 of the Qatari penal code, the penalty is 7 years. In
Oman, article 223 imposes a jail penalty from 6 moths to three years.

DISCLAIMER:While every effort
has been made to ensure the accuracy of this publication, it is not intended to
provide legal advice as individual situations will differ and should be
discussed with an expert and/or lawyer. For specific or legal advice on the
information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East background,
and a recognized authority on Islamic shari’a (law). Adjunct Professor at
Fairleigh Dickinson University, Madison, New Jersey.

·Professor of Middle
East Constitutional and Islamic law,

·Expert Consultant on
Islamic divorce in US Courts and Canada,

·Expert Consultant on
Islamic finance.

Admitted to the
Lebanese Bar Association; Associate Member of the New York State Bar
Association and the American Bar Association.

Prof. Sawma lectured
at the American Academy of Matrimonial Lawyers (AAML) in New York State and
wrote many affidavits to immigration authorities, Federal Courts, and family
State Courts in connection with Islamic law of marriage, divorce, custody of
children, and abduction of children to Muslim countries.

Testified in many
family courts throughout the United States in relation to Islamic family law.

Taught Islamic Finance
for MBA program at the University of Liverpool, United Kingdom.

[1]
Lut is a reference to Biblical Lot, Son of Haran and nephew of Abraham in
Genesis 11: 27. According to Genesis 19: 17-22, as the cities of the valleys
were being destroyed, where Lot and his daughters fled from Zoar, where they
had taken refuge, up into the hills of Moab. Dwelling with their father in a
cave, through incestuous relations.

[2]
Translation by Dr. Muhammad Taqi-ud-Din al-Hilali and Dr. Muhammad Muhsin Khan
of the Noble Qur’an, King Fahd Complex For the Printing of the Holy Qur’an,
Madinah, Kingdom of Saudi Arabia.

Sunday, June 05, 2016

The United States severed
diplomatic and consular relations with the Government of Iran on April 7, 1980
as a result of the events surrounding the seizure of our Embassy in Tehran,
Iran on November 4, 1979. In April of 1980, the United States Government formally
asked the Swiss Government if it would assume diplomatic and consular
representation of the United States in Iran. The Swiss agreed to perform
specific consular and administrative functions o behalf of the U.S. Government.

One of the major problems
facing the U.S. is parental kidnapping of American children to Iran. Iran is
not signatory to The Hague Convention on Child Abduction, and the Iranian
government has placed strict limits on the ability of Swiss diplomats to
intervene in cases involving parental kidnaping of American children to Iran.
The Iranian government placed restrictions because they do not recognize the
concept of dual nationality and therefore, when one parent is an Iranian
citizen, consider the children involved to be Iranian citizens only.
Consequently, removing kidnaped children from Iran would be considered
kidnapping under Iranian law.

Fear of Potential Abduction

In many instances, the
wife fears that the Iranian husband may kidnap the children to Iran without her
knowledge. One of the first steps is to notify the Department of State’s Office
of Legal Assistance and Citizenship Appeals at (202) 326-6178. The Office can
block the issuance of a U.S. passport in the child’s name upon submission of a
court order giving the wife sole custody or prohibiting the child’s departure
from the U.S. without permission of the court. That office can also tell
whether the spouse has already applied for and obtained a passport for the
child. However, if a passport has already been issued for the child, that
office cannot revoke the passport or prevent its use. For more information, see
this ink: http://www.passportsusa.com/family/abduction/country/country_498.html
(accessed June 3, 2016).

Iran Does Not Recognize Dual Citizenship

A child born of an
Iranian father is considered Iranian citizen according to Iranian law, and
could travel abroad with Iranian passport without the consent of the mother.
The U.S. State Department can do nothing to prevent the issuance of an Iranian
passport by the Iranian Interests Section of the Embassy of Pakistan. The
address and telephone number of the Iranian Interest Section of the Embassy of Pakistan,
Tel. (202) 965-4990. See this link: http://www.daftar.org/Eng/default.asp?lang=eng (accessed June 3, 2016).

American Women Marrying Iranian Men Need Permission to
Leave Iran

American women who marry
Iranian nationals, gain Iranian nationality. The woman’s U.S. passport will be
confiscated by the Iranian authorities. American women may not leave the
country without permission from their husbands. The U.S. Interests Section at
the Swiss Embassy in Tehran can provide only very little assistance if an
American married to an Iranian man face marital difficulties and/or encounters
difficulty in leaving Iran.

Iran Does Not Recognize U.S. Custody Orders

Custody orders issued by
U.S. courts are not recognized or enforced by the government of Iran. When a
child is abducted to Iran, it becomes near impossible to bring him or her back
to the United States without the full support and consent of the father. All
cases involving marriage, divorce, and custody of children in Iran are governed
under the jurisdiction of religious courts, which do not grant custody of
children to a parent who lives outside of Iran and who will not raise them
within the Islamic faith.

Article 1169 of the Civil
Code of Iran states that the mother has custody of a male child until he
reaches the age of two, after which, custody goes to the father. As to girls,
the mother retains custody of her daughter until she reaches the age of seven,
after which the custody goes to the father. If the mother becomes insane or remarries
another man during the time that she has custody to the children, the custody
will go to the father. If the court determines that the father is unfit to
raise the children, their custody may be granted to the paternal grandfather or
to the mother, if the mother has not renounced her Iranian citizenship and is
resident of Iran. If the court grants custody to the mother, she will need
permission from the paternal grandfather or from the court to obtain exit visas
for the children, under the age of eighteen, to leave the country.

The Supremacy of Islamic Law in Iran

The form of government of
Iran is that of an Islamic republic, based on the “Qur’anic justice.” (Article
1 of the Iranian Constitution). The supremacy of Islamic law in Iran is
confirmed in various provisions of the 1979 constitution. Article 4 states:
“All civil, penal, financial, economic, administrative, cultural, military,
political, and other laws and regulation must be based on Islamic criteria.
This principle applies absolutely and generally to all articles of the
constitution as well as to all other laws and regulations, and fuqaha’ of the Guardian Council are
judges in this matter.”

This means that the
family law of Iran is based strictly on Islamic Shari’a for the Muslim
community in that country. It also means that Islamic Shari’a is superior to
any foreign or international law, including international human rights treaties.

Article 21 of the Iranian
constitution states: “The government must ensure the right of women in all
respect in conformity with Islamic
criteria [mawazin-e-eslami]”. This makes Islamic Shari’a superior to the
freedom of women that are guaranteed by international treaties.

Under Islamic Shari’a,
girls could be married off against their will by male marriage guardians. Women
are required to be monogamous, whereas men are allowed to have up to four wives
at a time. Wives owed obedience to their husbands, who were entitled to keep
them at home and to beat them and to withhold maintenance for disobedience. Husbands
could terminate marriages at their discretion simply by stating a divorce
formula such as “I divorce you”, or “I divorce my wife”, or “my wife is
divorced”, whereas wives needed to overcome difficult hurdle to obtain a
divorce over their husband’s objections. Men have superiority over women in the
area of guardianship, in which they enjoy great power as guardians over minors.

The government of Iran
encourage early marriages for girls by lowering the minimum age for marriage
from eighteen to nine. According to the Islamic Republic Civil Code, the legal
age of marriage in Iran is thirteen years for girls and fifteen for boys.

However, the Iranian parliament’s legal affairs committee made several
statements arguing that the Islamic Republic is attempting to lower the girl
marriage age to nine with a permission from the judge. So, even though the
above-mentioned marriage is illegal based on Iran’s civil code, the religious
authorities allowed it.

In the area of
succession, women got one-half the share of males who inherited in a similar
capacity.

Iran Did Not Ratify the Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW)

CEDAW, or Treaty for the
Rights of women, was adopted by the United Nations in 1979, and is the most
comprehensive international agreement on the basic human rights of women. The
treaty provides an international standard for protecting and promoting women’s
human rights and is often referred to as a “Bill of Rights” for women. It is
the only international instrument that comprehensively addresses women’s rights
within political, civil, cultural, economic, and social life.

Article 5 of CEDAW
requires modifying social and cultural patterns of conduct of men and women
with a view to achieving the elimination of prejudices and customary and all
other practices which are based on the idea of the inferiority or the
superiority of the sexes or stereotyped roles for men and women.

As of December 2014, 188
countries ratified CEDAW. So far Iran is not a signatory to the CEDAW due to a
resistance from the Guardian Council. In 2003 the Iranian parliament ratified
the treaty, but then it was vetoed by the Guardian Council.

Iran Entered Reservations to the Convention on the
Rights of the Child (CRC)

The CRC is aimed at
fostering improvement in the situation of children and protecting their
interests. Upon signing the CRC, Iran had indicated that it would reserve to
CRC articles and provisions “which may be contrary to the Islamic Shariah,”
preserving the right to make such particular declaration upon ratification.
Upon ratification on July 13, 1994, Iran entered a reservation saying:

“The
Government of the Islamic Republic of Iran reserves the right not to apply any
provisions or articles of the Convention that are incompatible with Islamic
Laws and the international legislation in effect.”

By entering reservations
in this manner to CRC, Iran is left free to decide that any or all articles of
the CRC should not be applied. The addition of an indication that Iran was
reserving to the CRC in cases where it was incompatible with “the international
legislation in effect” meant that Iran does not abide by international law but
rather the Islamic documents that were put forward by the Organization of
Islamic Conference and endorsed by Iran, such as the Cairo Declaration on Human
Rights, which in essence subordinates international human rights to Islamic
Shari’a.

DISCLAIMER:While every effort
has been made to ensure the accuracy of this publication, it is not intended to
provide legal advice as individual situations will differ and should be
discussed with an expert and/or lawyer. For specific or legal advice on the
information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East background,
and a recognized authority on Islamic law of marriage, divorce and custody of
children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

·Professor:
Middle East Studies at Fairleigh Dickinson University.

·Lawyer
with Middle East Background; Graduated from the Lebanese University, school of
law.

Saudi Arabia’s Shari’a Court issued a
custody order against a U.S. citizen woman who was married to a Saudi husband.
The husband obtained a court judgment from Saudi Arabia granting him custody of
his two daughters. The Court in Allegheny, Pennsylvanian agreed with our argument
that Saudi Arabia does not have jurisdiction, and the custody order violates
Pennsylvania public policy and that Saydi Arabia is in violation to
international human rights treaties.

The court order is not published yet, but
I have a copy at request. Once published, I will post the link online. For more
information on Abduction of children or fear of abduction to Muslim majority
countries, please see our website at: www.gabrielsawma.blogspot.com

Author of dozens of articles dealing with Islamic divorce in USA
and on International Law: Most of these articles can be found on our website
at, http://www.gabrielsawma.blogspot.com

Following is a partial list of my articles on Islamic and Hindu
Divorces:[1]

·Iraqi Divorce in U.S. Courts

·Yemeni Divorce and U.S. Immigration

·Egyptian Divorce and U.S. Immigration

·Palestinian Islamic Divorce of West Bank
in USA

·Saudi Divorce in USA

·Saudi Divorce and U.S. Immigration

·Saudi Arabian Child Custody Cases in USA

·Pakistani Divorce and U.S. Immigration

·Muslim Divorce in Tunisia

·Muslim Divorce in Bangladesh

·Marriage of Minors in Islam

·The Iddat of a Woman in Islam

·Muslim Men Marrying Non-Muslim Women

·The Law of Marriage and Divorce in the
United Arab Emirates

·Islamic Syrian Divorce in USA

·Islamic Yemeni Divorce in USA

·Islamic Jordanian Divorce in USA

·Recognition of Hindu Divorces in New York
State

·Islamic Divorce in New York State

·The Khul’ Divorce in Egypt

·Islamic Women Divorce Laws in Egypt

·Muslim Iranian Divorce in USA

·Pakistani Islamic Divorce in U.S. Courts

·Islamic Lebanese Divorce in USA

·Islamic Marriage Over the Phone, an
interview with BBC, (see above)

·Islamic Sharia in Theory and Practice, a
Lecture at FDU, (see above)

·Divorce in Egypt, an interview with CNN,
(see above)

·Annulment of Islamic Marriages

·The Wali (guardian) in Islamic
Marriages According to Hanafi Jurisprudence

·Islamic Marriage Contracts in the Hanafi
Jurisprudence

·The Jihaz in Islamic Marriages

·The Nafaqa in Islamic Marriage

·The Mahr in Islamic Marriage Contracts

·Indian Divorce in US Courts

·Application of Islamic Sharia in US
Courts

·Abduction of children to Muslim Majority
Countries

·Abduction of American children to Saudi
Arabia

·Abduction of American Children to Jordan

·Abduction of American Children to Iran

Wrote extensively on
International law in the area of the European Union Law. Following are
excerpts:

Labels

About Me

Gabriel Sawma, Lebanese attorney, born in Lebanon and lawyer with Middle East background, dealing with International Law, mainly the European Union Law, the Middle East Law and Islamic Shari'a law.
Professor of Middle East Constitutional Law,Islamic Law, Arabic and Arab Culture and Civilization at Fairleigh Dickinson University, NJ. Professor of Islamic Finance at the University of Liverpool, UK.
Expert consultant on Middle East affairs, terrorism and authority on Islamic Shari'a, including Islamic marriage contracts, the mahr, and Islamic divorce in USA, http://www.islamicdivorceinusa.com
Expert consultant on Islamic banking and finance.
Expert consultant on Islamic inheritance and child custody.
Admitted to the Lebanese Bar Association of Beirut. Associate Member of The New York State Bar Association, and the American Bar Associations. Wrote extensively on Islamic and Hindu divorces in USA.
Visit our website at http://www.islamicdivorceinusa.com
Email: gabrielsawma@yahoo.com
Tel: 609-915-2237